Thomson v Marine Management Organisation

Guidance prepared for monitoring the condition of protected sites does not automatically prescribe the attributes to be used in assessing the environmental impact of a project on a marine conservation zone. The decision-maker must identify the relevant attributes and assess the project’s direct and indirect effects by reference to the conservation objectives and the evidence. A monitoring attribute is not necessarily itself a protected feature or an independently protected characteristic. Where the evidence shows that the relevant physical and ecological effects have been considered, a challenge directed in substance to expert scientific judgment will not establish an error of law.

The claimant sought judicial review of the defendant’s decision to grant the Dover Harbour Board a marine licence under the Marine and Coastal Access Act 2009 for dredging sand from the Goodwin Sands. The challenge focused on the preceding environmental impact assessment and Stage 1 assessment for the proposed Goodwin Sands marine conservation zone.

The claimant argued that the 2004 JNCC Common Standards Monitoring Guidance made topography, defined as the depth and distribution of sediment, a mandatory attribute which had to be assessed directly. The defendant and Natural England maintained that the Guidance concerned monitoring rather than project-impact assessment, did not apply prescriptively to marine conservation zones, and that the direct and indirect effects of dredging had in any event been fully assessed.

1. The application was dismissed. The challenge was, in substance, a challenge to expert scientific advice and conclusions rather than an identifiable error of law. The MMO had considered the application-specific documents, the Environmental Statement, the Stage 1 assessment, Natural England’s advice, the relevant marine conservation zone guidance and the Thanet Coast MCZ supplementary advice used as a proxy for the proposed Goodwin Sands MCZ.
2. The 2004 JNCC Guidance was intended principally for practical monitoring of the condition of specified protected-site features. Its statement that topography was a mandatory attribute applied to sites and features within the scope of that Guidance. The statement did not make topography a mandatory attribute for every marine conservation zone, nor did it prescribe the method of assessing the impact of a particular project.
3. The distinction between monitoring and impact assessment was material. Monitoring attributes provide indicators of condition over time. In a project-specific impact assessment, the decision-maker may need to examine the relevant components directly, including spatial extent, depth, volume, wave effects, tidal currents, sediment transport, sediment composition, community effects and recolonisation.
4. The MMO had assessed the direct effects of removing sand and lowering the seabed, including the retention of a minimum sand layer, and the indirect effects on waves, tidal currents, sediment transport, deposition, sediment composition, ecological functioning and recovery. The evidence supported the conclusion that the dredging would not significantly hinder the conservation objectives.
5. The contention that topography had to be considered in its own right had no practical meaning in the circumstances. There was no evidence that the particular changing shape of the Goodwin Sands had an independent ecological value capable of being affected by the proposal. The MMO was entitled to rely on the expert advice that topography was not a useful attribute for this feature and site.
6. Even if the MMO had erred by failing expressly to describe topography as mandatory, the error could not have affected the outcome. The court could identify no overlooked factor or alternative analysis capable of producing a different decision. Relief would therefore have been refused in any event under s31(2A) of the Senior Courts Act 1981.